Legal Measures to Address the Impacts of Sea Level Rise 235 Legal Measures to Address the Impacts of Climate Change-induced Sea Level Rise on Pacific Statehood, Sovereignty and Exclusive Economic Zones KYA RAINA LAL* Historically, states have ceased to exist due to conflict, conquest or politics. However, the 21st century is witnessing an additional force capable of redrawing world maps entirely. Climate change and climate change-induced sea level rise will radically alter coastlines and international boundaries; displace millions of people; and, as we are now witnessing, inundate entire islands to the point of extinction. In the Pacific, a region of 22 self-governing nations and 10.5 million people, many low-lying islands and coastal areas are facing the very real possibility of losing their coasts — threatening their very existence. For the most part, issues of displaced peoples and the environmental, economic and security implications of climate change dominate the climate change discourse. This article instead focuses on the legal impacts and implications that sea level rise will have on the existence of Pacific Island statehood, sovereignty and maritime territories. Under contemporary legal frameworks, Pacific peoples face a double harm where climate change deprives them of their land and international law deprives them of their seas. Therefore, this article will examine what sinking islands mean in law, and what they mean for Pacific peoples, their recognition in law and their claim to land and sea territories. This article draws on international law, including the United Nations Law of the Sea Convention, the doctrine of historic waters and regional customary international law. I INTRODUCTION Historically, states have ceased to exist due to conflict, conquest or politics, leading to maps and borders being reshaped and redrawn.1 Geographically, however, a state has not physically ceased to exist, save for the “fabled state * BA in Pacific Studies, LLB, LLM (First Class Hons) in Environmental Law, University of Auckland. The author currently practises as a Barrister and Solicitor in the Republic of Fiji. 1 Rosemary Rayfuse “International Law and Disappearing States: Utilising Maritime Entitlements to Overcome the Statehood Dilemma” (2010) <www.law.unsw.edu.au> at 1. 236 Auckland University Law Review Vol 23 (2017) of Atlantis”.2 This may be about to change. Climate change-induced rises in sea levels are radically altering coastlines, redrawing our maps and causing the Pacific Islands to sink.3 Sea level rise is not a new phenomenon; oceans have risen and fallen for millions of years.4 Yet with the advent of anthropogenic climate change, sea levels are rising at rates never witnessed before. Scientific modelling suggests that a sea level rise of at least one metre by the end of the century is not unlikely.5 For the Pacific — a region of 22 self-governing nations6 with over 10 million people7 and many low- lying islands and coastal areas — climate change-induced sea level rise is a serious concern — one that threatens their very existence.8 The climate change discourse has predominantly focused on displacement,9 and the environmental, economic and security implications of climate change.10 In contrast, this article will examine the legal impacts of climate change-induced sea level rise on continued Pacific statehood, sovereignty and claim to maritime territories.11 Part II introduces these legal impacts. Part III discusses the current international law framework and the double harm it creates in respect of the Pacific Islands: climate change deprives the Islands of their land, while international law deprives them of their seas.12 Part IV explores how this double harm might be prevented. The article concludes that coping with this novel legal dilemma requires current international law frameworks to undergo considerable change.13 It requires a shift from a system that “strives for consistency, universality, and predictability” to one that is flexible, responsive and able to examine issues 14 on a case-by-case basis. 2 At 1. 3 At 1. 4 Rosemary Rayfuse “Sea Level Rise and Maritime Zones: Preserving the Maritime Entitlement of ‘Disappearing’ States” in Michael B Gerrard and Gregory E Wannier (eds) Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate (Cambridge University Press, New York, 2013) 167 at 167. 5 Marcel JF Stive, Roshanka Ranasinghe and Peter J Cowell “Sea Level Rise and Coastal Erosion” in Young C Kim (ed) Handbook of Coastal and Ocean Engineering (World Scientific, Singapore, 2010) 1023 at 1023. 6 See Joeli Veitayaki “Staking Their Claims: The Management of Marine Resources in the Exclusive Economic Zones of the Pacific Islands” in Syma A Ebbin, Alf Håkon Hoel and Are K Sydnes (eds) A Sea Change: The Exclusive Economic Zone and Governance Institutions for Living Marine Resources (Springer, The Netherlands, 2005) 150 at 150. 7 Faafetai Sopoaga and others “The role of New Zealand health professional training institutions in capacity building in the Pacific region” (2015) 128(1420) NZMJ 6 at 6. 8 Rayfuse, above n 1, at 1. 9 See AD (Tuvalu) [2014] NZIPT 501370-371; AF (Kiribati) [2013] NZIPT 800413; and Teitiota v Chief Executive of the Ministry of Business Innovation and Employment [2013] NZHC 3125, [2014] NZAR 162. 10 Achim Maas and Alexander Carius “Territorial Integrity and Sovereignty: Climate Change and Security in the Pacific and Beyond” in Jürgen Scheffran and others (eds) Climate Change, Human Security and Violent Conflict: Challenges for Societal Stability (Springer, Berlin, 2012) 651. 11 See Rayfuse, above n 1. 12 Lilian Yamamoto and Miguel Esteban Atoll Island States and International Law: Climate Change Displacement and Sovereignty (Springer, Heidelberg, 2014) at 140. 13 Maxine Burkett “The Nation Ex-Situ: On climate change, deterritorialized nationhood and the post- climate era” (2011) 2 Climate Law 345 at 345. 14 At 347. Legal Measures to Address the Impacts of Sea Level Rise 237 II THE IMPACTS OF CLIMATE CHANGE ON THE PACIFIC What is Climate Change? Climate change is a ubiquitous term in academic literature and day-to-day life. The Earth is warmed and made habitable15 for human life through a complicated interaction of processes, which together have regulated the 16 Earth’s temperatures. These natural processes — which help to regulate the 17 Earth’s temperature — produce greenhouse gases (GHGs) such as methane 18 (CH4) and carbon dioxide (CO2). These gases act like an atmospheric blanket, preventing heat from escaping the atmosphere and keeping the planet warm.19 Historically, higher levels of GHGs were stored in natural carbon sinks: the oceans, soils and forests.20 However, in the last few hundred years our society has gone through a period of industrialisation, reliance on fossil fuels and agricultural dominance, resulting in the rampant and unprecedented production of GHG emissions into our atmosphere.21 Due to these excessive emissions, our planetary sinks are no longer able to store these excess GHGs.22 Consequently, excess GHGs remain in the atmosphere, trapping more and more heat.23 This heat accumulates over time, and causes world temperatures to steadily climb. We call this climate change. However, the climate change causing the negative climate impacts we see today is human-induced and human-driven, and so we call it anthropogenically- driven climate change.24 The direct correlation between climate change and sea level rise is undeniable and occurs in two ways. First, the rise in temperature causes glaciers and polar ice caps to melt, releasing stored water and causing global 25 water levels to rise through a basic volume increase. Secondly, as 15 Nicholas Stern The Economics of Climate Change: The Stern Review (Cambridge University Press, Cambridge, 2007) at 9. 16 See generally Thomas F Stocker and others Climate Change 2013: The Physical Science Basis — Working Group I Contribution to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge University Press, New York, 2013) at 124. 17 Stocker and others, above n 16, at 1455. See the definition of “Greenhouse gas” [GHG]. 18 The six key GHGs often focused on are: methane (CH4), carbon dioxide (CO2), nitrous oxide (N20), hydrofluorocarbons (HFCs), perfluorocarbons (PFCs) and sulphur hexafluoride (SF6). See generally the Kyoto Protocol to the United Nations Framework Convention on Climate Change 2303 UNTS 162 (opened for signature 16 March 1998, entered into force 16 February 2005). See also David Archer and Stefan Rahmstorf The Climate Crisis: An Introductory Guide to Climate Change (Cambridge University Press, Cambridge, 2010) at 21–32; and Stocker and others, above n 16, at 121. 19 Climate Change in the Pacific (World Wildlife Foundation South Pacific Programme, Fiji, 2003) at 4. 20 See Stern, above n 15, at 14. 21 Stern, above n 15, at 4–5. 22 Stern, above n 15, at 12–14. 23 James G Titus and others “Greenhouse Effect and Sea Level Rise: The Cost of Holding Back the Sea” (1991) 19 Coastal Management 171 at 172. 24 United Nations Framework Convention on Climate Change 1771 UNTS 107 (opened for signature 20 June 1992, entered into force 21 March 1994), art 1(2). 25 Titus and others, above n 23, at 173. See also John Connell and Matakite Maata Environmental Planning, Climate Change and Potential Sea Level Rise: Report on a Mission to the Republic of the Marshall Islands (South Pacific Regional Environment Programme, 1992) at 53; and Tony 238 Auckland University Law Review Vol 23 (2017) temperatures increase, water levels rise by the thermal expansion of oceans.26 Together, these two processes result in overall eustatic changes.27 The Paris Agreement attempted to limit anthropogenic temperature increases to well below 2°C above pre-industrial levels and make a concerted effort to limit temperature increases to well below 1.5°C above pre-industrial levels.28 However, it is likely that our current global emissions have already taken us past this threshold.